What’s next on Title IX?

WHAT’S NEXT ON TITLE IX: Education Secretary Betsy DeVos on Friday in a highly anticipated move rescinded Obama-era policies governing how colleges and universities must address sexual assault — and issued her own guidance for how schools should handle the issue under Title IX. Reaction to the news fell largely along the fault lines that have been established on the issue: Congressional Democrats, women’s groups and many survivor advocacy organizations blasted the move, while advocates for accused students and individual rights organizations welcomed the new policy.

Story Continued Below

— The highlights: The Trump administration is allowing schools to use a higher standard of proof in campus disciplinary proceedings related to sexual violence. Schools can choose whether to use the “preponderance of the evidence” standard that was required by the Obama-era guidance or use a higher standard known as “clear and convincing evidence.” The guidance also scraps a 60-day timeline for when colleges should resolve sexual assault complaints, and it allows institutions to resolve complaints through mediation if both the accused student and accuser voluntarily agree to that format.

— Higher education leaders say that they’re still digesting the new guidance. Many observers say they expect campus officials to mostly keep their current campus sexual assault policies in place – at least until it becomes clearer what Title IX regulations the Trump administration will develop.

— But even if colleges are set on keeping the status quo, there are some potential obstacles. One footnote in the new guidance document says that colleges and universities shouldn’t have different evidentiary standards in sexual assault cases than they have in other campus disciplinary hearings — which could require changes to campus policies. In addition, schools also have to make sure that interim measures they take once a student makes an allegation of sexual assault — such as changing students’ housing arrangements — are not biased against the accused under the new policy. That could also require changes, since the Obama-era policy had required schools to take interim measures that “minimize the burden on the complainant.”

— Up next: Education Department officials said they expect to propose legally binding regulations about campus sexual assault under Title IX within the next “several months.” That would be the first time since 2000 that an administration has written new rules relating to Title IX — and only the fourth time an administration has regulated under Title IX since it was signed into law in 1972. Unlike regulations under the Higher Education Act, the Education Department won’t have to engage in negotiated rulemaking as it drafts the new proposed Title IX rules.

— “Significant guidance document.” Many Republicans, including DeVos, had criticized the Obama-era sexual assault policies because they were set out in subregulatory guidance documents rather than formal rulemaking. But in addition to scrapping two Obama-era subregulatory guidance documents, DeVos published a new guidance document. The Education Department dubbed this as “interim” guidance, though the document notes that it was approved by the Office of Management and Budget as “significant guidance,” and it carries just as much weight as the Obama-era documents that were rescinded. Education Department officials defended that move on Friday. “Rolling that guidance back and replacing it with a statement of what schools can expect and what their current legal obligations are in no way falls into the vain of ‘issuing mandates by letter’,” a senior department official told reporters.

JUDGE MAY TOSS LAWSUIT BY EX-CORINTHIAN STUDENT SEEKING DEBT RELIEF: The federal judge in California who earlier this year slammed the Education Department over its more than two-year delay in processing a student loan forgiveness claim signaled on Friday that she may soon dismiss the former Corinthian College student’s case on procedural grounds. The former Corinthian student, Sarah Dieffenbacher, is suing the Education Department, asking a federal judge to stop wage garnishments on her defaulted loans and have the department grant her 254-page “borrower defense” application.

— Consumer advocates had praised a June decisionby U.S. District Judge Virginia A. Phillips in which she rejected the Trump administration’s bid for more time to review a “borrower defense to repayment” application as "both frivolous and in bad faith.” Phillips, a Clinton appointee, said at the time that the Education Department should make a decision on the loan cancellation application in 90 days or she would begin considering the merits of the claim in court.

— The Education Department responded over the summer by withdrawing its decision to garnish Dieffenbacher’s wages – but said it still won’t decide the underlying “borrower defense” claim until next March. Because the wage garnishment decision was the initial basis for Dieffenbacher’s lawsuit, Phillips wrote, the department’s withdrawal of the wage garnishment decision appears to require her to now dismiss the case. Still, Phillips wrote that concerns that the Education Department “is attempting to circumvent the Court’s order are not lost on the Court.” Both sides will have until Oct. 19 to weigh in on whether the case should be dismissed.

— Meanwhile, DeVos on Friday reiterated her criticisms of the Obama-era “borrower defense to repayment” regulations, which she has indefinitely delayed. “While students should have protections from predatory practices, schools and taxpayers should also be treated fairly as well,” DeVos said at the Mackinac Republican Leadership Conference, according to The Detroit News. “Under the previous rules, all one had to do was raise his or her hands to be entitled to so-called free money.” DeVos earlier this year cited an ongoing lawsuit by a for-profit college association as a reason to postpone the regulations from taking effect. A coalition of Democratic attorneys general from 18 states and D.C. have sued DeVos over her postponement of the regulations, which the Trump administration has separately said it plans to rewrite starting this fall.

** A message from the George Washington University: A positive impact in the classroom, leading children on a path to a brighter and more successful future, starts with education policy analysis and reform. Apply now for an MA in Education Policy at the George Washington University. http://politi.co/2AJDuGm **

DEVOS SAYS EDUCATION DEPARTMENT BUREAUCRACY IS ‘FRUSTRATING’: DeVos also said on Friday that she’s frustrated with bureaucracy at the department she runs. “The bureaucracy is far more present and it’s far more formidable than I’d even feared,” DeVos said in an interview with conservative columnist Ingrid Jacques of The Detroit News. “Getting anything done is a process, not an event. When you are oriented to getting things done, it can be frustrating.”

— DeVos told Jacques that the reception to her new Title IX policy on campus sexual assault “on balance, has been very good.” DeVos also said that it was “very surprising” that her critics have cast her as not caring about sexual assault victims or rapists, according to Jacques. “It kind of speaks to a larger commentary to what people actually know and how they understand the founding of our country,” DeVos said. “It makes you concerned about the future. It really does. I can’t imagine being on a campus today.”

SESSIONS PLANS TO ADDRESS CAMPUS ‘FREE SPEECH’ ISSUES: Attorney General Jeff Sessions on Tuesday will deliver a “free speech on campus address” at Georgetown University’s law school, according to Axios. The website reported that Sessions is expected to tell students: "Whereas the American university was once the center of academic freedom — a place of robust debate, a forum for the competition of ideas — it is transforming into an echo chamber of political correctness and homogenous thought, a shelter for fragile egos." Read more.

HURRICANE FLEXIBILITY GUIDANCE ISSUED: The Trump administration on Friday released a new 26-page guide for school districts, colleges, state officials, and Education Department grantees who are recovering from federally declared disasters. The guidance document outlines flexibility on reporting deadlines, potential alternative program services and recommendations for ensuring continuity of services.

— "For children of affected families, returning to school can provide stability in a time of upheaval as they reconstruct their lives," DeVos said in a statement announcing the guidance. "The department will continue to provide whatever flexibility and support it can to help ensure stakeholders have the resources they need to get these students back into the classroom as quickly as possible." Read the document here.

REFLECTING IN LITTLE ROCK: Former President Bill Clinton delivers the keynote address at 10 a.m. today at Little Rock Central High School during a ceremony marking the 60th anniversary of the “Little Rock Nine” desegregation of the school. The eight living members of the nine are also expected share their perspective of events that occurred on Sept. 25, 1957. On that day, the black teens, under the escort of the Army’s 101st Airborne Division, were brought back into the high school for their first full day of classes. The soldiers were sent by President Dwight Eisenhower after an angry white mob had gathered outside the school days earlier in protest. The 101st replaced the Arkansas National Guard troops ordered there by Arkansas Governor Orval Faubus, who claimed the effort was needed to maintain peace.

** A message from the George Washington University: George Washington University's Master’s degree in Education Policy will give you the opportunity to develop solutions to educational issues facing the nation and around the globe. This program attracts those interested in the political and social environments affecting education policy with an emphasis on the competencies needed to develop policy options, analyze their potential, implement effectively, and evaluate impacts. Because of our distinct location in the nation's capital, Washington DC, internships are offered in a variety of federal, state, and local agencies.

Graduates of the Education Policy Masters program take on positions at think tanks, non-profit national organizations, government agencies, and international organizations providing support and analysis for education-related decision-making. Impact education policy decision-making by applying today! http://politi.co/2AJDuGm **

About The Author

Michael Stratford is an education reporter for POLITICO Pro. He most recently covered federal higher education policy and student loans at Inside Higher Ed, with previous bylines at The Associated Press, The Chronicle of Higher Education, and Kiplinger’s Personal Finance magazine. Stratford grew up in Belmont, Mass. and graduated from Cornell University, where he was managing editor of The Cornell Daily Sun.